Rees v. Peyton

• Decision Date: 01 February 1965
• Docket Number: No. 9410.,9410.
• Citation: 341 F.2d 859
• Parties: Melvin Davis REES, Jr., Appellant, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

341 F.2d 859 (1965)

Melvin Davis REES, Jr., Appellant, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Appellee.

No. 9410.

United States Court of Appeals Fourth Circuit.

Argued October 5, 1964.

Decided February 1, 1965.

S. White Rhyne, Jr., Washington, D. C. (Charles A. Dukes, Jr., Green, Babcock & Dukes, Hyattsville, Md., and Mullin & Connor, Washington, D. C., on the brief), for appellant.

Reno S. Harp, III, Asst. Atty. Gen. of Virginia (Robert Y. Button, Atty. Gen. of Virginia, on the brief), for appellee.

Before SOBELOFF, Chief Judge, and HAYNSWORTH, BOREMAN, BRYAN and BELL, Circuit Judges, sitting en banc.

ALBERT V. BRYAN, Circuit Judge:

By habeas corpus in the District Court Melvin Davis Rees, Jr. seasonably but unsuccessfully attacked, as unconstitutional, his trial, conviction and sentence of death in a Virginia court for the murder of Carroll Vernon Jackson, Jr. On his appeal we find no entrenchment upon his rights in the criminal trial. Nor do we see error in the conduct of the habeas corpus hearing. Discharge of the writ will be affirmed.

The incursions upon his fundamental privileges by the State, as charged by Rees, are (1) the admission in evidence of a pistol seized in an illegal search, (2) refusal of a change of venue or venire, and (3) imprisonment during trial in Richmond, 50 miles away, rather than in the jail of Fredericksburg, about 6 miles from the place of trial. Errors pointed at the District Court, beside the failure to declare the conviction a nullity, are its rulings at the hearing precluding interrogation of the trial jurors as to their impression by or indifference to publicity during the trial relating to the crime. Prior to the Virginia trial, appellant Rees had been convicted in the Federal District Court of Maryland for kidnapping of the murder victim's wife and sentenced to life imprisonment, with no appeal taken. See United States v. Rees, D.C., 193 F.Supp. 849 (1961).

A compendium of the facts will suffice to frame the legal issues now before us.^* Carroll Vernon Jackson, Jr., the victim of the murder, with his wife, Mildred, and their two infant children, Susan and baby Janet, left his mother-in-law's home in Louisa County, Virginia during the late evening of January 11, 1959, driving to their own house in the same county, only a few miles distant. Next morning the car was found at a point midway to their destination, on the side of the highway and unoccupied. About two months later, March 4, the bodies of Carroll Jackson and the baby were found in adjoining Spotsylvania County. The infant had expired from head blows. Her father, severely beaten in like manner, had also been fatally shot through the head. The wound, in the opinion of the Medical Examiner of Virginia, came from a .38 caliber bullet. Near his body were his broken eyeglasses and a pair of plastic gun grips.

Afterwards, on March 21, 1959, the bodies of Mildred Jackson and her other daughter, Susan, were found buried in Maryland. Both had been cruelly clubbed about the head and apparently died from aspiration of blood.

Rees was arrested in West Memphis, Arkansas on June 24, 1960 by agents of the Federal Bureau of Investigation for unlawful flight to avoid prosecution for another murder in Maryland. His movements on the day of the Jackson tragedy had placed him in Spotsylvania County.

Upon notification of Rees' apprehension, FBI agents were sent to the home of his parents in Hyattsville, Maryland, not far from where the bodies of the wife and daughter had been unearthed. Rees was known to sleep at the house on occasion. The agents' purpose was to inform the parents of the arrest before news reporters reached them; to locate the Jackson murder pistol, to which it was believed the plastic grips belonged and with which it was thought the fatal blows had been dealt Carroll Vernon Jackson and his daughter; to obtain additional specified evidence connected with the Jackson and other homicides of which Rees was suspected; and to check his activities from time to time in the vicinity where his parents lived.

The revolver was found in their residence. The search there and the seizure of the pistol, resulting in its introduction in evidence, admittedly the decisive proof against Rees, constitute the primary and principal violation of constitutional immunities now pleaded by Rees.

I. The Fourth Amendment, applied to State prosecutions by the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), was not transgressed. The search and seizure were not unreasonable, but in every sense reasonable and authorized in law. This conclusion rests on the facts; they demonstrate its soundness. Cf. Ker v. State of California, 374 U.S. 23, 33, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1913); United States v. Rabinowitz, 339 U.S. 56, 63, 70 S.Ct. 430, 94 L.Ed. 653 (1950). This becomes manifest upon continuation of the factual recital to include what occurred after the FBI agents arrived at the home of the Reeses.

Both of the parents consented to the search of the premises by the agents, the husband signing a formal authorization and the wife giving oral approval. But appellant Rees contends that this permission was vitiated through coercion of his parents. The first factor of the asserted duress is the timing of the visit on June 24, 1960, the very day of the arrest: that the agents should be the ones to carry the news to the parents and rely upon the mental shock to weaken their resistance to a search.

The agents reached the home about 3:30 o'clock in the afternoon. Finding no one there, they waited in a neighboring home. The father returning at four o'clock was invited by the neighbor into her house. She introduced him to the agents and left the room. They had already informed her of the arrest. When she entered the room again, she says, the senior Rees was shaken with emotion and was standing between the two agents for support. There is a difference of recollection here; the agents say they did not tell the father of his son's trouble until they were in his home.

The agents and the senior Rees left the house through the back door, to avoid the reporters who had gathered nearby, and went to the Rees home. Whether they then or had previously told him of what had happened, they here stated they wished to search his property and to ask him about the whereabouts of his son on certain days. In this he was requested to sign a form, prepared at the time, stating his consent to the search. He preferred to consult his wife before making a decision. She came shortly. In the interval there is no indication of the agents' pressing their desire to search.

Upon hearing the distressing report, the wife readily acquiesced in the agents' proposal, observing that there was nothing to conceal. The father expressed the thought of consulting an attorney about the consent. The agents agreed that it was his right but said that as he felt his son could not have committed murder, there would be nothing found to incriminate him. Before it was signed both of the Reeses were fully aware of the contents of the paper. It read in this way:

"I, Melvin Davis Rees, Sr., having been informed of my Constitutional right not to have a search made of the premises hereinafter mentioned without a search warrant, and of my right to refuse to consent to such a search, hereby authorize James W. Sibert and Thomas J. Fynee, Jr., Special Agents of the F.B.I., U.S. Department of Justice, to conduct a complete search in my residence located at 3908 Madison Street, Hyattsville, Maryland. These agents are authorized by me to take from my residence any letters, papers, materials, or other property which they may desire. This written permission is being given by me to the above named Special Agents, voluntarily and without threats or promises of any kind."

During the search pursuant to this permission the agents went into the attic. There they saw in the rear of a closet a removable section leading to a crawl space. In this area was found what is now designated as an accordion case. Its discovery was reported to the father and it was produced before him.

The case was locked with a padlock and hasp. A tag was attached bearing the name, address and telephone number of one Dennis J. Werber. When questioned about it, the father had no knowledge of its existence or ownership. Nor could he identify it as anything belonging to his son. He assented to its forcible opening. In it was found the pistol. The other contents were certain obscene drawings, including newspaper pictures of the Jacksons, and an account in the younger Rees' own handwriting of his killing of Mildred Jackson and daughter Susan, with the molestation of the former. Receipting for all the articles and with the Reeses' consent, the agents took the pistol and the papers to the FBI office. The revolver proved to be the gun which matched the plastic grips. Blood stains were revealed on the butt. Upon objection none of the papers was admitted in evidence.

The circumstances of the agents' entry and search, we think, are a complete refutation of appellant's charges of psychological compulsion of either of his parents. Both the State and the Federal court have found that consent was understandingly and voluntarily accorded. Any question of a search warrant was thus waived, as is permissible. Zap v. United States, 328 U.S. 624, 628, 66 S.Ct. 1277, 90 L.Ed. 1477 (1946), vacated on another ground in 330 U.S. 800, 67 S.Ct. 854, 91 L.Ed. 1259 (1946). This finding is deeply anchored in the evidence. The elder Reeses were in exclusive possession of the house, with every right to authorize even its rummage. The testimony showed the house was not the home of the appellant, that he was merely an occasional visitor there, with no particular space assigned him for any purpose. Consequently, his concurrence in the search was unnecessary. These circumstances divorce this case from...